Funny. That's not the way I heard it.

Law professor Orin Kerr* employs a rather twisted way of thinking in this post, assuming rather than proving his conclusion. I guess you get lazy, thinking the default always falls to your side and all...

In Bush v. Gore, the Florida Supreme Court was repeatedly fudging state election law to try to help out Al Gore in the 2000 election. In this case, Judge Walker was fudging the rules on broadcasting trials to try to give the plaintiffs a national forum to make the case for gay marriage.

In both cases, the decisions left the strong impression that the judges below had picked a side: They were manipulating procedural rules to do what they could to help out the side they wanted to win in a case with enormous political implications.

I don't know whether to laugh at his "analysis", or bawk at him like the chicken he appears to be. (OK -- decided.)

Brrrrrawwk - braawwwk - brrawwk! *flap flap flap* I wonder how many eggs you 'spose that chicken Orin Kerr can lay daily?

And lest you wonder if Mr. Kerr supports equal rights for all committed couples: of course he does. Via the ballot box. When the majority of America are convinced they're deserving of the same protections and benefits as regular straight folk.

But naturally, we've got to cloak the courtroom proceedings, lest anyone be pursuaded of the just response to this litigation.

Rarely do you see a law professor so insecure at proving a position in court that he publicly accuses a sitting judge of "fudging the rules", perhaps because he's afraid the early trial talk just might be true.

Michael Petrelis was at the court on day one of the Prop 8 trial. His impression:

Two words come to mind as opposing attorney Charles Cooper presents his opening arguments: hesitant speaker. Coming after the wonderful preparation, smoothness and expert delivery of Olson, Cooper was a letdown. Damn hard to sense much of his self-confidence. He also gets too jittery at the lectern. His central point is that marriage must and does equal procreation. Huh? That's going to be his argument? We should easily win, if it is.
...
The defense is citing Brokeback Mountain and Will & Grace as proof gays are no longer discriminated against.

With his fearful attitudes, I wonder if Mr. Kerr is in that minority that fears for the future of heterosexual marriage should the franchise be extended to include teh gays? You never know how men used to being sheltered, either in the academy or the organization, will react when asked to demonstrate the veracity of their claims.

Still, calling a judge's rep into question surely is not the least underhanded way to persuade readers of the inherent justice of your beliefs. (or, to translate that into chickenspeak: brrrawk braawkk brawwkk brawk braawk brawwwk!)

ADDED: It will be interesting to see how Orin responds to the pushback already mounting in his comments section. He can't just delete everyone who disagrees with his logic now, can he?

Steve says:

But this makes it sound like the judge was a rogue who singlehandedly bent the rules. Surely Judge Walker did not force the Circuit Council to approve a pilot program. Did he even have the power to unilaterally amend the Local Rules?

January 13, 2010, 6:48 pm

Mark Field says:

I think the judicial instinct at play here is the objection of U.S. Supreme Court Justices when they see lower court or state court judges intentionally fudging procedural rules to help one side in very high-profile litigation that implicates the political process. In Bush v. Gore, the Florida Supreme Court was repeatedly fudging state election law to try to help out Al Gore in the 2000 election.

This strikes me as assuming the conclusion. The necessary first step would be to establish that the FL court WAS doing that, and then intervene. A substantial part of the problem in Bush v. Gore, IMO, was the failure of the SCOTUS to make such a case. That failure made it appear to many of us that it was in fact the SCOTUS which was “intentionally fudging procedural rules to help one side in very high-profile litigation that implicates the political process.”

January 13, 2010, 6:55 pm

Kazinski says:

There is certainly precedent for the Supreme Court stopping state court judges from fudging state court rules where there are important federal interests in play, see, e.g., Justice Brennan’s opinion in Bouie v. South Carolina, 378 U.S. 347 (1964). But I thought that the judicial instinct to stop lower court manipulation of the rules in Bush v. Gore was an instinct looking for, but not finding, a doctrinal home.

I think you are wrong here. Consider that the Florida Legislature promulgated laws for the Presidential election not based on powers derived from the Florida Constitution, but a direct grant of power from the U.S. Constitution:

Each state shall appoint, in such manner as the Legislature thereof may direct...

The fact that the Florida State Supreme court was interpreting language in the Florida State Constitution and applying it to law that did not rely on the State Constitution is the rational for stepping in.

January 13, 2010, 7:00 pm

Ruuffles says:

Are you suggesting that Walker has an interest in seeing in the anti-prop 8 side win? The Florida SC was stacked with Democrats appointed by Lawton Chiles, thus one could plausibly make the argument that the Dems on the FSC were rooting for the Dem Al Gore. But what about Walker? He was not only appointed by H. W. Bush, but he was in some anti-gay ruckus before taking the bench:

Walker, a longtime business lawyer in San Francisco, was first nominated to the bench by President Ronald Reagan but encountered opposition over his membership in the all-male Olympic Club and his representation of the U.S. Olympic Committee in a suit that prevented a Bay Area group from calling its athletic competition the Gay Olympics.

Another question: why would Walker try so hard if he’s at the district court level and there’s another level of mandatory review (the FSC was the last word before SCOTUS)? I’m sure Reinhardt et al would take up the slack.

January 13, 2010, 7:34 pm

zuch says:

Kazinski: "Consider that the Florida Legislature promulgated laws for the Presidential election not based on powers derived from the Florida Constitution"

No. They promulgated no different laws for presidential elections (at least in any manner of consequence here; IIRC, there’s an obscure provision that votes for the candidate are deemed to be votes for the electoral slate) than for their other elections. Do you claim that the corpus of Florida election law is all dependent only on Article II federal powers?

Cheers,

January 13, 2010, 9:25 pm

zuch says:

ruuffles: "The Florida SC was stacked with Democrats appointed by Lawton Chiles, thus one could plausibly make the argument that the Dems on the FSC were rooting for the Dem Al Gore."

Five of the seven ScoFla justices were appointed by Republican governors.

Cheers,

January 13, 2010, 9:27 pm

LEAVE EM LAUGHING / WRAP UP:
Orin explains his fears of cameras, and learns to love the bomb:

{C}ritics of Judge Walker claim that the real purpose of the order was to help the plaintiffs make their case to the public: Televising the case and letting the witnesses testify about their life stories could make this the Scopes trial of our day, changing public opinion on a matter of great public importance to further the side that Judge Walker favors as a policy matter. In contrast, I don’t think anyone has ever suggested a similar motive in the decision to release the audio of Bush v. Gore.

I should add, for what it’s worth, that I personally would have liked to see the video, and I also would prefer that court hearings like that be televised. Still, the comparison between that and the decision to release the audio of Bush v. Gore seems inapt to me.

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*If my memory serves me correctly, Kerr was the blogger who left the Volokh blog for a few months to spin off and establish an independent blog of his own. When the going got a bit rough though, he promptly tucked the tail between the legs and ran back to the safety of the VC blog. A chicken dog!

Lol ... maybe it's not the gay marraige think he fears so much but, like with Scalia, the bestiality naturally coming down the pike should the courts find equal protection under the law for all citizens.